All Must be Insured for Everything

Chief Justice Roberts touched on something that I had neither thought of or heard anyone else mention before.  He said, "You cannot say that everybody is going to participate in the substance abuse market or pediatric services and yet that is part of what you require them to purchase."

Health care is a very broad descriptor, and so is health insurance.  If we split up insurance into different types of insurance such as broken leg insurance, substance abuse insurance, getting cancer insurance, building-collapsing on you insurance does their argument hold?

Presumably, it's the same case.  Take substance abuse, of course, some people are much more likely to need it.  If there's still community rating, the people whom it benefits will buy and those that aren't benefited won't buy it.  The insurance death spiral occurs so the insurance doesn't exist.

Should that type of insurance be mandated to ensure the market exists?  Does that mean all types of insurance should be mandated?

Is it different because these sub-insurances are grouped together?

Health Care is Different. So What?

Defenders of the mandate declare that because the health care market is fundamentally different than other markets, Congress has the ability to mandate people buy insurance.  I have been struggling with this for a while, trying to figure out exactly how it being a different market affects its constitutionality.

In today's opinion pieces I found Noah Feldman's take which offers an answer.  

The answer is that health care insurance is different because if the healthy people fail to get themselves coverage, it becomes extremely difficult -- under some conditions, impossible -- for the insurance market to operate.

Really, though, if healthy people fail to get themselves coverage, it becomes extremely difficult for the insurance market to operate as they want it to operate--namely that low risk insurees subsidize high risk insurees.  Of course, this is only the case when community rating is required.  If insurers could charge insurees according to their risk, the very sick could still get covered, but they would pay a much higher price.

Still, even if we grant this argument I haven't found the connection to constitutionality.  Suppose there was no mandate, but there's still community rating, now there is no insurance market.  So what? There are presumably many markets that don't exist, especially insurance markets.  Does Congress have the ability to create those markets by forcing everyone to buy those goods?  

In what is the real crux of their argument, Feldman says, "The government can penalize inaction only when that inaction deprives everyone else of a public good."  The public good in this case, I suppose is health insurance?  I don't know how he defines a public good.

I expect pro-mandaters to say that everyone has a right to health care, and it's too expensive to afford on one's own so everyone has a right to health insurance.  Conservatives eschew a public option so we have to ensure the existence of private insurance that can cover everyone.  To do that, we must have a mandate.

Is this the argument?

 

The Crack Cocaine Approach to Governing

Democrats are now arguing that the ACA can't be repealed because some of its provisions have already gone into effect and are benefiting people.

This is generally how Democrats distort the economy.  First they offer something for free (or that seems free), Social Security, Medicare, no denial of pre-existing conditions, tariffs, etc.  Then when the effects on the economy show up, and it's clear that what benefits some, harms others, then those benefited fight tooth and nail to retain their privileges and it's too late to go back to where you started.

Part III of ACA post

Medicaid

The issue here is that the government has expanded Medicaid and is forcing states to expand their coverage without a commensurate expansion in funding.

How it works - in some cases the federal government believes itself limited and can't force people or states to do certain things.  So what they do to get around this is offer the states money if the states follow their rules.  The ACA law expanded Medicaid, and some states find the new regulations much too costly, but if they don't adhere to the new rules, the government will discontinue all funds.

In the past, courts have ruled that for small amounts, these behaviors are constitutional.  They suggested, however, that there is a line between goading and coercive.  If it becomes coercive, it has moved into unconstitutionality.  Obviously, that line has never been defined.

In principle I agree with there being a distinction between the two.  The federal government should be allowed to push certain behaviors in the national interest, but it shouldn't be able to undermine the tenth amendment.

Constitutionally, however, even for small amounts, the behavior is shady.  It's not explicit but it feels like it's against the framers' intent.  I wouldn't say it's unconstitutional, and I regret that because it offers the federal government a way to force states to do anything they want.

There's a missing element to the Constitution that would help solve this problem.  It doesn't say which level of government people's taxes belong to.  This Medicaid discussion presumes that all tax dollars naturally belong to the federal government and then they can redistribute them to the states.  If the Constitution stipulated how much money the federal government was entitled to take, then they would no longer have the freedom to blackmail the states.

What happens if a state's taxes and the federal taxes combine to be over 100%?  Is that possible?  Who gets paid first?

They try to understand

In This Week with George Stephanopoulos on February 26, 2012 (transcript), Jennifer Granholm made the following argument to appeal to libertarians.

But the irony is, if you believe in the laboratories of democracy and you hear Governor Patrick saying it's worked and it's enormously popular across the board the business community likes it, why wouldn't you look at a model like that as something that the entire country could embrace?

I am a strong proponent of Laboratories of Democracy. But Governor Granholm misses the point entirely. She actually misses three points.

1) People in different states are different.  A solution meant for one state, like Massachusetts may not work in a state like Utah.  They have different economies, different populations, different outlooks.

2) Some mechanisms that work on a small scale may not work on a large scale.  North Dakota has recently done well by focusing on its natural resources.  Paul Krugman would be the first to tell you that that doesn't make it a promising solution to the US's energy problems.

3) Laboratories imply experimentation. If the federal government imposes its solution on all states, that leaves very little room for experimentation.  If something's wrong with Massachusetts's plan, how long will it take to determine the problem and a potential solution when every state must adhere to the same structure?  If Massachusetts's system works, other states will adopt it.  If they see minor problems, they'll adopt the majority and try to fix the rest.

One Giant Leap for a Liberal

Part II of ACA Court Case Post


Necessary and Proper

The argument here is that Congress has the authority to regulate the health care market.  More specifically, it has the power to require insurance companies to accept all potential insurees.  To do this however, it needs to force all citizens to obtain insurance.  Otherwise people will wait until they need medical care and get insurance for it.  Therefore, Congress has the authority to force all citizens to obtain insurance.

Let's start with a clear example of the Necessary and Proper clause that few would argue with.  The Constitution explicitly grants the federal government the power to print and coin money.  Obviously, to print and coin money, the government needs equipment, therefore Congress is authorized to purchase such equipment.

There are a few distinctions to make between these two situations. First, the government needs to be granted a clear power.  The power to coin money is enumerated in Article 1 Section 8. Couldn't be clearer. The power to regulate the health care sector is much less clear.  Healthcare is never mentioned in the Constitution. I (and strict constructionists) would debate this power, but it has by now been presumed by most, so we'll go with it.

Now, is the questionable law "necessary and proper?"  In the case of coinage, I can't imagine another way to coin money than to purchase the equipment that does so.  So I would say it's necessary.  Is it proper? There's little in the Constitution that might be construed to argue otherwise.

Is an insurance mandate necessary?  If it doesn't exist, can the remainder of the law function?  I would have to say yes, but not well.  Can you still force insurers to accept all customers? Yes.  However, prices will likely increase greatly.  I'd say it's an extremely helpful but not necessary law.

Is it proper?  There's really nowhere in the Constitution that I know of that makes it improper. I don't think it is explicitly outlawed anywhere else, so I would have to say it is proper.

I recognize that this is probably the hardest issue to argue because I'm up against decades of precedents and laws that I believe are illegal but have built a defense that won't go down without continuous relentless debate.  We're nowhere near that yet.


He concludes by discussing the implications of an unconstitutional finding on these grounds, that then the EPA and private Social Security Accounts would be illegal.  Environmental issues are clearly interstate issues as it's impossible to confine problems of one state to that state only.  Maybe it's not enumerated, but this is exactly the kind of issue the federal government is supposed to address.  Social Security Accounts, however, are more interesting.  The government already forces everyone to contribute to a retirement account. Private accounts would just enable these citizens to direct their funds to certain investments.  I think this issue could be debated.

Men and women are different

Liberals seem to understand insurance differently than conservatives.  Liberals believe insurance is meant to spread the costs of care across everyone, so that everyone pays a single price.  It seems to be a variation of socialism where all differences among people are washed out.  If people have fewer health problems, they should pay more to cover other people's health problems.

Of course, this encourages people to behave in ways that might be unhealthy (moral hazard) because the costs of behavior will be distributed across the rest of society.  Conservatives believe in risk-profiling.  People with higher risks should generally pay higher prices.  They believe insurance is meant to spread the risk, but not from high risk insurees to low risk insurees but from one high-risk person to others.

For example if there are ten people, five who have an 85% chance of needing a certain treatment and five who have a 15% chance, then the former five should pay higher rates than the latter five.  That's how the payments should be distributed, and it is more true for automobile insurance.

This can be more complicated for issues that people have no control over, however.  If someone has a congenital condition, is it really fair that they'll have higher health costs throughout their life?  Is it really fair for others to pay for those costs either?

One Small Step for a Judge

Part I of III

Next week the Supreme Court will hear arguments about the Affordable Care Act.  There was a dueling pair of editorials regarding this issue.  One by Jon Cohn at The New Republic and one by Adam White at The Weekly Standard.  Both are pretty instructive and largely overlapping.  Obviously I'm partial to the latter.

Both make the claim that this issue is as difficult as it is to litigate because it is unprecedented.  Without similar legislation being contested in court, the judges don't know which direction to take.  I want to take Jon Cohn's argument piece by piece.

Interstate Commerce Argument

Cohn argues here that the Court has never before limited Congress's power to regulate by proscribing an ability to force private citizens to purchase goods or participate in a market.  This is true, but Cohn doesn't explain that this precedent doesn't exist solely because Congress has never attempted to have a mandate.  It's not as if Congress has passed multitudes of laws forcing people to purchase certain goods and services, and never before has a court suggested that Congress had no such power; Congress has never pushed its powers so far.  What's unprecedented here is Congress's chutzpah.

His final paragraph stresses Justice Silberman's argument that Congress has the power to impose "national solutions to national problems" and asks if conservatives believe Congress doesn't have the authority to address national problems.  Congress can of course pass legislation to deal with national problems--as long as that legislation is constitutional.  Being a national problem does not give Congress a free pass to do anything it pleases.  I'm sure Mr. Cohn doesn't believe Congress can ignore the Bill of Rights if it deems a problem national.  Terrorism is a national problem, but Americans' rights as outlined in the Constitution are supreme.

Intentions

To start this blog, I intend to run a few series of posts.

Double Standard Posts - These will discuss the double standards I see being applied to conservatives and liberals.  It's clear to many that behaviors of Republicans and Democrats are treated differently.  I intend to draw attention to these.

Loss of Liberty - I intend with these posts to document Ronald Reagan's observation "As government expands, liberty contracts."

They Just Don't Get It - These posts will demonstrate that Democrats and Liberals don't understand the conservative/Republican/libertarian perspective.

Double Standards: Obama's Oral Skills

If President Obama didn't look at the text of his speech as often as he does in this clip, he would speak as poorly (or worse) than President Bush.

White House State Dinner - March 14, 2012

I'm surprised he can't go more than 3 or 4 words without consulting the notes.